Sarkis v Mirza

In contempt proceedings for breach of an asset-disclosure order, an appellate court will interfere with a decision to refuse an adjournment only where the judge’s discretion has been exercised improperly. Anxiety caused by the committal application, without timely medical evidence or other sufficient reason, does not require an adjournment.

Where the breach is deliberate and repeated, and the contemnor has had repeated opportunities to comply, an immediate custodial sentence may be justified. A sentence of 28 days lies at the bottom end of the available range and is not manifestly excessive merely because the contemnor acted in person, asserted later compliance, or faced bankruptcy proceedings. Each case depends on its facts.

The claimant sought to enforce substantial unsecured loans by obtaining a worldwide freezing injunction requiring the defendant to disclose assets exceeding £1,000. The defendant failed to provide the required information. Holland J found her in contempt and imposed a 28-day sentence, suspended on compliance.

After further alleged non-compliance, David Clarke J refused an adjournment sought on the ground that the defendant was unfit to attend, activated the custodial sentence, and held that her assertion that she had no assets was untrue. The defendant appealed, challenging both the refusal to adjourn and the sentence. The central issues were whether the hearing should have been adjourned and whether immediate imprisonment for contempt was justified.

1. Appeal dismissed. The appellant remained in contempt of the disclosure orders, and the 28-day committal order was upheld.
2. The refusal to adjourn was a discretionary case-management decision. The appellant had not previously relied on ill health, had provided no medical evidence before the hearing, and the information available to the judge indicated that her difficulty was anxiety about attending court. There was no basis for appellate interference.
3. The appellant had made no proper attempt to disclose her assets. The court accepted the judge’s conclusion that her assertion of having no assets in the United Kingdom or worldwide was untrue. A sworn bankruptcy statement of affairs did not amount to compliance with the disclosure orders in the circumstances.
4. The history showed deliberate and repeated efforts to frustrate and flout the court’s orders. The appellant had received reminders, had access to legal advice, and had already been given more than one opportunity to comply. Bankruptcy proceedings and the prospect of investigation of her assets did not make a further opportunity appropriate.
5. Imprisonment in civil proceedings is rare and should be imposed reluctantly after consideration of whether another sanction would be appropriate. Once immediate custody was justified, 28 days was at the bottom end of the scale and could not be characterised as manifestly excessive. The court ordered costs against the appellant and made no direction concerning third-party funding.

• Court of Appeal (Civil Division): dismissed the appeal from the committal order made by David Clarke J on 18 March 2005 and upheld the 28-day custodial sentence.
• High Court: Holland J found the appellant in contempt and imposed a 28-day sentence suspended on compliance with the disclosure order. Tugendhat J later adjourned the committal application to 18 March 2005. David Clarke J refused a further adjournment and activated the sentence.